USA – ALABAMA Law and Practice Contributed by: Adam J. Sigman, Crystal H. Walls, Nathan Stotser, Katie Sinclair and Courtney Dow, Dentons
See Sections 35-4-20 and 35-4-23. If a lease term is 20 years or less, including options to extend, a memorandum of lease is not required to be recorded to be enforceable against a third party, if that third party had actual or constructive knowledge of the lease. Leases for more than 20 years, includ - ing options to extend, are void for the period of time over 20 years, unless, within one year of the lease’s execution, the lease or a memorandum of the lease is recorded with the probate office in the county where the leased property is situated. See Section 35-4-6. Transfer taxes are due when the lease (or a memoran - dum of lease) is recorded in the public records (Sec - tion 40-22-1 (a)). Each county’s probate office should be consulted to calculate the tax due upon the record - ing of the lease or memorandum thereof. The tax consideration is calculated as follows: term of lease (in months) multiplied by monthly rent multiplied by percentage from a lease percentage chart kept by the probate court of the county where the property is located (which is based on the term of the lease), divided by 1,000. See Section 40-22-1 (c). To obtain the proper lease percentage table, attor - neys should contact the probate court of the county where the property is located. The tax consideration is rounded up to the nearest USD500 (Section 40-22- 1 (c)). 6.21 Forced Eviction Residential Lease For a residential lease, the landlord must give the tenant seven business days’ notice of default; if the default is not cured, the landlord may file an unlawful detainer action, notice of which must be posted at the leased premises. The tenant then has seven days from the posting of notice to file an answer. Assuming the tenant does not answer, the landlord may file for a writ of execution with the district court for the county where the leased premises are located, which will be issued to the county sheriff, and it may take several weeks to actually serve and evict the tenant.
In total, the process can take several months or long - er, based on the case’s specific circumstances; see
Section 35-9A-461. Commercial Lease
For a commercial lease, the landlord must give the tenant a notice to cure if required by the lease, with the cure period also being determined by the lease language. If the lease does not require a notice to cure, it does not have to be served. Before filing an eviction, the landlord must serve a notice terminating the tenant’s lease, or the possessory interest only, as desired, with a statutorily required ten-day notice (or less, if permitted by the lease). If the property is not vacated, the landlord may file an unlawful detainer action, notice of which must be posted at the leased premises. The tenant then has 14 days from the post - ing of notice to file an answer. Assuming the tenant does not answer, the landlord may file for a writ of execution with the district court for the county where the leased premises are located, which will be issued to the county sheriff, and it may take several weeks to actually serve and evict the tenant. In total, the process can take several months or long - er, based on the case’s specific circumstances; see Section 6-6-310 to -353. 6.22 Termination by a Third Party Pursuant to its terms, a lease may be terminated by a third party in the case of condemnation or foreclosure on the part of a lender that pre-dated the lease. In the event that the leased premises are condemned, “the lessee is entitled to share in the total award only in proportion to [its] interest” ( State Highway Depart- ment v Lawford , 611 So 2d 285, 288 (Alabama 1992)); and, if the fee owner is satisfied with the award for its interest in the property, but the leasehold owner is not, the circuit court can order a separate trial for the leaseholder on appeal ( State v SouthTrust Bank of Baldwin City , 634 So 2d 561, 563-564 (Alabama Civil Appeal 1994)). Payment is based on the fair market value of the leasehold interest. 6.23 Remedies/Damages for Breach An Alabama landlord may only accelerate rent in a commercial lease if the lease expressly permits this. A landlord may only pursue self-help to retake posses -
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